“Docket No. 80-6448 SECRETARY OF LABOR, Complainant, v.PASCHEN\/MORRISON-KNUDSEN\/KENNY,A JOINT VENTURE,Respondent.OSHRC Docket No. 80-6448ORDERFormer Administrative Law Judge Ralph B. Maxwell affirmed four of five items in a citationissued to Paschen\/Morrison- Knudsen\/Kenny, a joint venture, engaged in a tunnelingoperation, and assessed a combined penalty of $3,300, the amount recommended by theSecretary.\u00a0 The judge found that the employer’s violations of standards requiringtesting for flammable gases and oxygen deficiency were \”serious\”, but not\”willful.\”\u00a0 The Secretary petitioned for review solely on whether the judgeshould have characterized these two violations as \”willful.\”\u00a0 Review wasdirected solely on that issue.\u00a0 The Secretary has not suggested that a higher penaltyshould be assessed if the violations are found to be \”willful\”; on the contrary,he asks that the $3,300 penalty assessed by the judge be affirmed.\u00a0 Furthermore,inasmuch as neither party has taken issue with the abatement requirements of the citationitems affirmed by the judge, abatement is not in controversy here.\u00a0 In light of thesecircumstances, we conclude that the issue of willfulness does not warrant Commissionreview.\u00a0 See P & Z Company, Inc., 82 OSAHRC 8\/C8, 10 BNA OSHC 1427,1428, 1982 CCH OSHD ? 25,937, p. 32,490 (No. 76-431, 1982)(direction for review vacatedbecause review no longer provident).Accordingly, the direction for review is vacated.FOR THE COMMISSION Ray H. Darling, Jr.Executive Secretary DATED:\u00a0 APR 24 1986 \u00a0The Administrative Law Judge decision in this matter is unavailable in this format. Toobtain a copy of this document, please request one from our Public Information Office Bye-mail ( [email protected] ), telephone(202-606-5398), fax (202-606-5050), or TTY (202-606-5386).”